Of the Responsibility of Municipality to Manage drains

Legal Issues

In the recent judgment rendered by the Supreme Court in the appeal case of H. Bhookhun (as appellant) v. the Municipal Council of Curepipe (as respondent), their Ladyships Mrs Cheong and Mrs Teelock have ruled that the Municipality has a statutory duty to control, care and manage drains within the area under its jurisdiction. In a gist, the facts of the case are as follows.

On or about 27 March 2008, H. Bhookhun’s house was flooded due to heavy rainfall which caused considerable damages to his property. The appellant in the matter stated that the drains on the road are located at about 3 metres from his house and there was also a lack of drains. Before the occurrence of the floods in March 2008, he had made several complaints to the Municipality of Curepipe about the obstructions caused by his neighbours in the drains and the illegal constructions on them. It is the contention of H. Bhookhun that the Municipality did not take act upon hiscomplaints despite the fact that it is required by law to maintain these structures. Post the floods of March 2008, the Municipality proceeded to build drains in the area. The essence of the case for H. Bhookhun was therefore that he suffered considerable damages to the extent that the Municipality had failed to manage, clean and improve the existing drains and construct new drains.

For its part, the Municipality contended that the drains were regularly managed and to the extent that there was a good network of drains, there was no need for new drains. The Municipality further sought to avoid liability by invoking ‘force majeure’, on the ground that the cyclone Lola had brought exceptionally heavy rainfall which caused the floods of March 2008.

For our readers’ understanding of the term ‘force majeure’ (literally translated as ’greater force’), this is an occurrence which is unforeseeable, external to the parties of the contract, and unavoidable (irresistible). Clauses of ‘force majeure’ are included in contracts to remove liability for natural and unavoidable catastrophes that interrupt the expected course of events and restrict participants from fulfilling obligations. The concept of ‘force majeure’ originated in French civil law and is an accepted standard in many jurisdictions that derive their legal systems from the Napoleonic Code. In common law systems such as that of the UK, ‘force majeure’ clauses are acceptable, but must be more explicit about the events that would trigger the clause.

In the present matter, the counsel for H. Bhookhun had submitted that section 41(2)(e) of the Local Government Act 2003 which was in force at the material time, entrusted to the Municipality ‘the construction, control, care, management, maintenance, improvement and cleansing of all pavements, drains, bridges, beds and banks of lakes, rivulets and streams’ within the limits of the area under its jurisdiction.

This would have the effect of conferring the Municipality, ‘la garde’ of the drains and its liability was as custodian of the drains under article 1384 of the Civil Code. The statement of case (known as plaint with summons) of the appellant which was lodged in court did not provide for the facts to that effect and therefore, the appellant could not rely on article 1384 of the Civil Code.

Indeed, every pleading must state material facts on which the party pleading relies for his claim and the law is not to be pleaded. Our Supreme Court Rules 2000 further provides that a plaint with summons shall state the substance of the cause of action. In that regards, the Ladyships stated:

‘..had the appellant intended to invoke article 1384, then the plaint should have gone further than merely stating that the respondent was responsible in law for the control, care, management and maintenance of the drains; the plaint should have stated the material fact that the respondent had the custody “la garde” of the drains. Furthermore the plaint should have stated the material fact that the obstructed and/or defective drains caused the flooding.’

However, while the appellant had failed to use the argument that the Municipality had failed in its duty of custodian, the Judges observed that the Municipality had indeed breached its duty in failing to maintain and clean the drains as required in law and therefore, had committed a “faute” for the purposes of article 1382 of our Civil Code.

The Appellant was consequently able to obtain damages on that basis.

• Published in print edition on 6 November 2015